Citation Nr: 21022463 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-00 520 DATE: April 15, 2021 ORDER Entitlement to service connection for gastroesophageal reflux disease (GERD), also claimed as acid reflux, is dismissed. Entitlement to service connection for a left shoulder condition is dismissed. Entitlement to a rating in excess of 30 percent from August 1, 2011, for residuals of a right total knee arthroplasty is denied. Entitlement to a compensable rating from June 27, 2011, to December 17, 2019, and a rating in excess of 10 percent from December 18, 2019, for a right knee scar is denied. REMANDED Entitlement to an initial rating in excess of 50 percent for depressive disorder is remanded. Entitlement to service connection for a sinus condition, to include chronic sinusitis and allergic rhinitis, is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for urinary incontinence is remanded. Entitlement to service connection for diabetes mellitus type II (diabetes) is remanded. FINDINGS OF FACT 1. In April 2020, a rating decision was issued granting service connection for GERD. 2. In April 2020, a rating decision was issued granting service connection for a left shoulder condition. 3. Throughout the period on appeal, the evidence has not shown that the Veteran’s residuals of his right total knee arthroplasty are productive of severe painful motion or weakness or intermediate degrees of residual weakness, pain, or limitation of motion. 4. The evidence does not establish that the Veteran’s right knee scar was productive of a scar associated with underlying tissue damage that is at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters), not associated with underlying tissue damage with an area of 144 square inches (929 square centimeters) or greater, or that was unstable or painful from June 27, 2011 to December 17, 2019. 5. The evidence establishes that from December 18, 2019, the Veteran had a single scar of the right knee that was painful; but the scar is not associated with underlying tissue damage that is at least 12 square inches (77 square centimeters) but less than 72 square inches (465 square centimeters). CONCLUSIONS OF LAW 1. As the benefit sought on appeal has been granted in full, the appeal for entitlement to service connection for GERD is dismissed. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.202. 2. As the benefit sought on appeal has been granted in full, the appeal for entitlement to service connection for a left shoulder condition is dismissed. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.202. 3. The criteria for a rating in excess of 30 percent for residuals of a right total knee arthroplasty have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5055, 5256, 5261, 5262. 4. The criteria for entitlement to a compensable rating, from June 27, 2011 to December 17, 2019, and a rating in excess of 10 percent from December 18, 2019, for a right knee scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.118, DCs 7801, 7802, 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1988 to October 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a notice of disagreement in March 2013. The RO issued a statement of the case in December 2015. The Veteran submitted his substantive appeal in December 2015. The Board remanded the issues indicated above in September 2018. The RO issued a supplemental statement of the case in September 2020. The appeal is now returned to the Board for further appellate review. The Board notes that the RO granted service connection for GERD and a left shoulder condition in an April 2020 rating decision. The Veteran contends that his morbid obesity is caused by inactivity and lack of exercise due to his service-connected disabilities and that his diabetes, sleep apnea, urinary incontinence, and hypertension are in turn caused by, or aggravated by, his morbid obesity. He also maintains that he began to have sinus problems in 1991, during his military service, and the sinus problems have continued since that time. The Veteran also contends that he is entitled to ratings in excess of those currently assigned for his depression, residuals of his right total knee arthroplasty, and right knee scar. Dismissals 1. Entitlement to service connection for GERD is dismissed 2. Entitlement to service connection for a left shoulder condition is dismissed The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. The April 2020 rating decision granted service connection for GERD and a left shoulder condition. Here, in essence, a “case or controversy” involving the pending adverse determinations to which the Veteran has taken exception no longer exists. The April 2020 rating decision effectively granted the Veteran’s appeal, and a case or controversy on those issues no longer exists. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). Based on the foregoing, the Board does not have jurisdiction to review the appeal on those issues and they are dismissed. Increased Rating Claim Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 1. Entitlement to a rating in excess of 30 percent from August 1, 2011, for residuals of a right total knee arthroplasty In June 2010, the Veteran underwent a total knee joint replacement. He was subsequently evaluated in a VA examination in October 2012. The knee examination showed that the Veteran had no painful motion, no ankylosis or other fixation of the joint, no impairment of the tibia or fibula, and no limitation of extension. The examiner stated that the Veteran had no residuals from his right total knee arthroplasty. As such, the Veteran was assigned a rating of 30 percent, the minimum rating, under DC 5055. The Board notes that on February 7, 2021 a change in the rating criteria under DC 5055 went into effect. However, the change in the criteria does not impact the Veteran’s evaluation because he had a total knee replacement and there is no indication that he has impairment of the tibia and fibula. Under DC 5055 60 percent rating is warranted with chronic residuals consisting of severe painful motion or weakness in the affected extremity, with intermediate degrees of residual weakness, pain or limitation of motion to be rated by analogy to DCs 5256, 5261, or 5262. 38 C.F.R. § 4.71a, DC 5055. As discussed above, the October 2012 VA examination found no residuals due to the right knee total arthroplasty. The Veteran underwent a Gulf War examination in May 2015, which indicated he had decreased range of motion and pain in the right knee. But it is not clear how this was determined, as no testing of the right knee was performed. Because necessary testing was not completed, the May 2015 examination is inadequate for rating purposes. In December 2019, the Veteran was afforded a new VA knee examination. The examiner determined that the Veteran’s right knee condition had improved since onset. The symptoms were described as intermittent discomfort with going up and down stairs. The Veteran’s passive and active range of motion were normal, so no limitation of flexion or extension was indicated. Although pain was noted on the examination, the examiner determined that pain, weakness, fatigability or incoordination do not significantly limit functional ability with repeated use over a period of time. No pain on weight bearing or evidence of pain on passive range of motion testing was found. The examiner opined that the Veteran had no residuals. Even though intermittent weakness, pain or limitation of motion is not indicated by the December 2019 examination, in affording the Veteran the benefit of the doubt, a rating by analogy to DCs 5256, 5261, or 5262 for intermediate degrees of residual weakness, pain or limitation of motion does not establish a higher rating. DC 5256 applies to ankylosis; DC 5261 applies to limitation of extension; and DC 5262 applies to impairment of the tibia and fibula. See 38 C.F.R. §§ 4.71a, DCs 5256, 5261, 5262. The Veteran is not shown to have right knee ankylosis, limitation of motion, nor impairment of the tibia and fibula. The Board has also considered whether a rating under DC 5010 for degenerative arthritis would be beneficial to the Veteran. However, a rating under DC 5010 does not result in a rating in excess of 30 percent and is of no benefit to the Veteran. Accordingly, the Board finds that a rating in excess of 30 percent for residuals of right knee total arthroplasty is not warranted. As such, the Board must deny the claim. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 2. Entitlement to a compensable rating from June 27, 2011, to December 17, 2019, and a rating in excess of 10 percent from December 18, 2019, for a right knee scar Currently, the Veteran has a non-compensable rating for his right knee scar from June 27, 2011, to December 17, 2019, and a 10 percent rating from December 18, 2019. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, in this instance, current DCs 7801 and 7802 are substantially the same as DCs 7801 and 7802 that were in effect prior to August 13, 2018, when assessing a single scar not covering multiple zones of the body; DC 7804 was not changed at all. As such, the change in the rating criteria does not impact the evaluation of the Veteran’s right knee. DC 7801 applies to a scar, or scars, due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage: A 10 percent rating is warranted for area, or areas, of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters); a 20 percent rating is warranted for area, or areas, of at least 12 square inches (77 square centimeters) but less than 72 square inches (465 square centimeters). 38 C.F.R. § 4.118, DC 7801. DC 7802 applies to a scar, or scars, due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage: A 10 percent rating is warranted for area, or areas, of at least 144 square inches (929 square centimeters). 38 C.F.R. § 4.118, DC 7802. Under DC 7804 a 10 percent rating is warranted for one or two scars that are unstable or painful; a 20 percent rating is warranted for three or four scars that are unstable or painful. 38 C.F.R. § 4.118, DC 7804. The Veteran was afforded a VA knee examination in October 2012. The examiner indicated that the scar had no underlying tissue damage, was 22 centimeters by ½ a centimeter and that the scar was not painful or unstable. An April 2013 medical note states that the Veteran’s right knee scar was well healed without pain or limitation of range of motion noted and no tenderness over any joints. The Veteran was afforded a Gulf War examination in May 2015. The examiner indicated that the Veteran’s right knee scar was 20 centimeters x 1/8 centimeters, was superficial and non-tender with deep palpation. The Veteran underwent a VA knee examination in December 2019. The examiner found that the Veteran’s scar was painful, as there was tenderness to palpation and discomfort around scar. The scar was measured to be 16 centimeters x 0.2 centimeters. Based on the evidence of record, prior to the December 18, 2019 VA knee examination the Veteran’s right knee scar was not shown to cover the area necessary for a compensable rating and the scar was not painful or unstable. Therefore, from June 27, 2011 to December 17, 2019, the Veteran’s scar did not meet the requisite criteria for a compensable rating. As of December 18, 2019, the record demonstrates that the Veteran’s right knee scar was painful, and therefore, met the criteria for a 10 percent rating under DC 7804 for one painful scar. However, the evidence does not demonstrate that the Veteran’s right knee scar covered the area necessary for a 20 percent rating and the Veteran was not shown to have three or four painful scars. Therefore, entitlement to a rating in excess of 10 percent, from December 18, 2019, is not established. Accordingly, the Board finds that a compensable rating from June 27, 2011, to December 17, 2019, and a rating in excess of 10 percent from December 18, 2019, for a right knee scar is not warranted. As such, the Board must deny the claim. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 50 percent for depressive disorder is remanded A remand confers on the claimant, as a matter of law, the right to compliance with the remand order and imposes upon the VA a concomitant duty to ensure compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). The VA has the duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). In September 2018, the Board remanded the issue of an increased rating for the Veteran’s depressive disorder in order to obtain medical records regarding treatment for the Veteran’s depression from the Citrus Heights and Sacramento Vet Centers. Records from Sacramento have been associated with the record, but no records from the Citrus Heights Vet Center has been associated with the claims file. The VA has a duty to obtain all relevant records in the custody of a Federal department agency. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Additionally, the Veteran has not been afforded a VA mental disorders examination since 2015, over five years ago. The record indicates that the Veteran dealt with increased depression and anxiety since the 2015 examination. As such, the Veteran should be afforded a new VA mental disorders examination. The VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, remand is warranted in order to pursue associating the Citrus Heights Vet Center medical records with the claims file and to afford the Veteran a VA mental disorders examination to assess his current level of disability. 2. Entitlement to service connection for a sinus condition, to include chronic sinusitis and allergic rhinitis, is remanded Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In December 2019, the Veteran was afforded a VA sinuses examination. The examiner indicated that the Veteran had diagnoses of sinusitis (resolved) and allergic rhinitis. The examiner opined that the Veteran’s chronic sinusitis and allergic rhinitis is less likely than not incurred in or caused by the sinus condition during military service. The examiner’s rationale was that the sinusitis is resolved and stated that there is evidence in the service treatment records to support the diagnosis of allergic rhinitis while in-service to present. However, the medical records note chronic sinusitis as a diagnosis during the pendency of the appeal. The examiner did not address whether the Veteran’s noted chronic sinusitis during the pendency of the claim is related to his sinusitis during military service. As such, the examiner did not provide an opinion whether a diagnosis of chronic sinusitis throughout the appeal period is at least as likely as not related to his military service. Furthermore, the examiner did not explain why the Veteran’s allergic rhinitis is less likely than not incurred in service. The examiner stated that the allergic rhinitis is completely unrelated, but the rationale seems to indicate there may be a connection with the Veteran’s military service. Medical evidence is considered probative when it is factually accurate, fully articulated, and provides sound reasoning for the conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Here, the examiner’s opinion simply does not make sense. In addition, the Veteran has stated that he began to have sinus problems during his military service and those symptoms have continued since that time. The examiner did not address this in his opinion, and it appears that the Veteran’s statements were not considered. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (2006). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Based on the foregoing, the Board finds that the December 2019 VA sinus examination opinion is inadequate and further development is warranted. 3. Entitlement to service connection for hypertension is remanded 4. Entitlement to service connection for sleep apnea is remanded 5. Entitlement to service connection for urinary incontinence is remanded 6. Entitlement to service connection for diabetes is remanded The Veteran contends that his claimed conditions were caused by, or aggravated by, his service-connected depression and orthopedic conditions. The record indicates that there is a potential relationship between the Veteran’s service-connected conditions and his hypertension, sleep apnea, urinary incontinence, and diabetes. The Veteran was afforded a VA examination in December 2019 concerning these conditions. The examiner provided secondary opinions regarding the Veterans hypertension, left shoulder, and GERD. As discussed above, the left shoulder condition and GERD have been service connected. In providing the opinion regarding a secondary connection for hypertension, the examiner simply stated that there is no medical literature or clinical evidence that supports the conclusion that the particular service-connected condition leads to or causes hypertension. The examiner provided no medical analysis or support from medical literature to corroborate the conclusions. The examiner also stated that there is no medical evidence to suggest hypertension was caused by NSAIDs. Again, no rationale or support for this conclusion was provided. The Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion.” See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that “a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor’s opinion”). As such, the examiner’s opinion is inadequate. The September 2018 remand directed that the examiner must address whether there is a relationship between the Veteran’s obesity and his sleep apnea, urinary incontinence, and diabetes. The examiner stated that there is no relationship between the Veteran’s obesity and his sleep apnea, urinary incontinence, and diabetes based on sound medical evidence. The examiner provided no explanation or basis for this statement, rendering the opinion inadequate. See Id.; see also Stegall. It is wholly unclear whether the examiner performed any research of medical literature in reaching the conclusions. The December 2019 VA examination failed to address the central issue of whether the Veteran’s obesity was caused by or contributed to by his service-connected depression and orthopedic conditions, and if so, did the obesity cause or aggravate his hypertension, sleep apnea, urinary incontinence, and diabetes. As such, remand is necessary in order to obtain an opinion addressing this pivotal issue. Furthermore, the examiner did not discuss whether any of the Veteran’s service-connected conditions may have aggravated the Veteran’s hypertension, sleep apnea, urinary incontinence, or diabetes. A medical opinion is inadequate when it does not consider all raised theories of entitlement. See Stefl, 21 Vet. App. 120 (2007). For the foregoing reasons, the Veteran must be provided a new VA examination to assess the nature and etiology of his hypertension, sleep apnea, urinary incontinence, and diabetes. The matters are REMANDED for the following action: 1. Associate with the claims file medical records from Citrus Heights Vet Center. All efforts to obtain such records must be documented and if records are not available that must be documented in the file. 2. Associate with the claims file all outstanding VA medical records. 3. Following completion of steps 1 and 2, schedule the Veteran for a mental disorders examination to assess his currently level of disability. The examiner should obtain a complete history from the Veteran and review the claims file in conjunction with the examination, giving particular attention to the Veteran’s VA treatment records, lay assertions, and the pertinent medical evidence. Any evaluations, studies, or tests deemed necessary by the examiner should be accomplished and any such results must be included in the examination report. The examiner is advised that the Veteran is competent to report symptoms and treatment and that his reports, including his reports as to the onset and nature of his symptoms, must be considered, along with the other evidence of record, in formulating the requested opinions. The examiner must provide a complete rationale for any opinion expressed. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 4. Following completion of steps 1 and 2 above, schedule the Veteran for an examination, or examinations, to determine the nature and etiology of the claimed sinus condition, hypertension, sleep apnea, urinary incontinence, and diabetes. The examiner(s) should obtain a complete, pertinent, history from the Veteran and review the claims file in conjunction with the examination(s), giving particular attention to the Veteran’s VA treatment records, lay assertions, and the pertinent medical evidence. Any evaluations, studies, or tests deemed necessary by the examiner(s) should be accomplished and any such results must be included in the examination report. The examiner(s) is/are advised that the Veteran is competent to report symptoms and treatment and that his reports, including reports as to the onset and nature of symptoms, must be considered, along with the other evidence of record, in formulating the requested opinions. Based on the examination(s) and review of the record, the examiner(s) is/are asked to provide the following: a). All diagnoses associated with the Veteran’s sinus condition and an opinion regarding whether any condition is at least as likely as not (i.e. a 50 percent probability or greater) that any currently diagnosed sinus condition is related to sinus problems in military service. The examiner must consider the Veteran’s sinus condition during the entire period on appeal and must address the Veteran’s statement that his sinus problems began in service and have continued since. The examiner must also consider the diagnosis of allergic rhinitis. b). An opinion regarding whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran’s hypertension, sleep apnea, urinary incontinence, and diabetes manifested in service, or were caused by, or aggravated by, his service-connected depression or orthopedic conditions. Separate opinions regarding causation and aggravation are required. The examiner must specifically address whether the Veteran’s obesity was caused by or contributed to by his service-connected depression and orthopedic conditions, and if so, did the obesity cause or aggravate his hypertension, sleep apnea, urinary incontinence, and diabetes. Separate opinions regarding causation and aggravation are required. The examiner(s) is/are advised that the term “aggravation” is defined for legal purposes as a chronic worsening of the underlying condition beyond its natural progression versus a temporary flare-up of symptoms. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation. The examiner(s) must provide a complete rationale for any opinion expressed. If the examiner(s) is/are unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). J. O’CONNELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Temple, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.